Tuesday, March 31, 2009

"The House Judiciary Committee voted S.115 out of committee today with a 8-2 vote[.] The committee made minor amendments to strengthen protections for religious freedom, and to make it clear that the laws only regulate civil marriage." The linked version of the bill is not the most current version, which has not yet been posted at the state legislature's website.

"The Family Policy Council of West Virginia has pushed for this session's resolution, citing a poll it says shows clear support for an amendment. It recently bombarded the revision committee's chairwoman and the head of the House Judiciary Committee with sometimes abusive phone calls demanding action, and targeted Gov. Joe Manchin with a postcard campaign."

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Take It To The People advertises itself as a "grassroots coalition" whose president is Reverend Craig Benson. It opposed Vermont's civil unions law in 2000, and is circulating a petition "to authorize an advisory referendum on the question, 'Shall the voters advise the General Assembly to adopt legislation confirming marriage as being solely between one man and one woman?'"

The organization can not overcome obstacles to securing a popular vote on a state constitutional amendment that would ban same-sex marriage. Before a proposed constitutional amendment can reach the Vermont electorate, the state Constitution (Ch. II, Sec. 72) requires, among other conditions, that the state legislature pass it in two successive sessions. It also requires that, in the first of the two sessions, the state Senate pass the proposed amendment by a two-thirds majority. A constitutional "marriage protection amendment" (MPA) has no better chance of satisfying a two-thirds-majority requirement than it did in 2000, when the best opportunity to advance an MPA through the state Senate failed. So Take It To The People can do no more to oppose same-sex marriage in Vermont than promote the idea of an advisory referendum. And that undertaking appears equally unpromising.

Editors of the Burlington Free Press agree that Vermont is "is small enough and our elected representatives accessible enough that most people have little trouble getting their message across." They add that a "move to put the issue to a public vote was defeated in the Senate. It could come up again as the House considers the measure. But an injustice is no less a travesty of our democratic principles for having the backing of the majority."

When reviewing the historical, legal context of Baker, Johnson considered the analogy between historical bans on interracial marriage and current bans on same-sex marriage. Just as nearly 30 state constitutions now ban same-sex marriages, so over 30 state constitutions banned interracial marriages when, in Perez v. Sharp, 32 Cal.2d 71 (1948), the California Supreme Court took the unprecedented step of outlawing restrictions on interracial marriage. Objections to both types of marriage include proscription based on Christian creation, but opposite arguments based on procreation. At the time of the Perez ruling, state courts considered the prospect of procreation as one reason to prohibit interracial marriage. But many state courts have justified opposition to same-sex marriage because their judges believe that marriage has been founded upon procreation.

If the California Supreme Court upholds Prop. 8 without also overturning existing same-sex marriges, enough same-sex couples married in Massachusetts and Connecticut could move to California to effectively weaken Prop. 8. The governors of Vermont and New Hampshire may veto marriage-equality legislation if adopted by the state legislatures. But the Times editors predict:

"No matter which way the California Supreme Court rules, the campaign to give equal marriage rights to gay and lesbian couples -- and the slow but building acceptance of these couples -- is inexorable."

Friday, March 27, 2009

By a vote of 11-9, the Delaware state Senate has defeated Senate Substitute 1 (SS1), a proposed amendment of the state constitution that would ban same-sex marriages, but would "not preclude civil union law for future consideration." Just before yesterday's vote (but apparently after debate?), SS1 was "was introduced and adopted in lieu of SB 27," which would have extended the ban to civil unions.

The Sussex Countian neglects this critical substitution. In fact, the newspaper had earlier reported that, according to SB 27 sponsor Sen. Robert Venables, SB 27would allow the state legislature to enact a civil unions law. Apparently, on the day of the Senate floor vote, Venables had to acknowledge that the more farreaching aim of SB 27 would guarantee its defeat, so he substituted SS1 as a last-ditch effort.

This article has details about yesterday's state Senate debate on SB 27, and about the state House debate that preceded passage of HB 6, which would prohibit discrimination based on sexual orientation.

"More than 1,000 demonstrators wearing white T-shirts with the slogan 'One Man, One Woman -- That's Marriage' rallied on the steps of Legislative Hall as, inside, both chambers engaged in lengthy debates colored by accusations of discrimination past and present."

Nicole Theis, executive director of the Delaware Family Policy Council, testified for SB 27, while Drewry Fennell, executive director of the ACLU in Delaware, spoke against it.

"Whatever you put into public policy reflects what happens in the classroom," Theis said, holding up copies of children's books that depict gay characters. "I think most people would agree, how you want to live is up to you, but don't teach it in the classroom."

"Elevating a prohibition that isn't based on one thing but discriminatory feelings is wrong," Fennell said. "That's not what we use the constitution for. I think it sends a message that many of you would not want to be sending."

New Hampshire Rep. Melanie Levesque expressed the same concern yesterday about singling out gays and lesbians for discrimination. A "Brookline Democrat who is black and married to a white man," she made her comment during debate in the New Hampshire House, which passed HB 436, providing equal access to marriage. Like Fennell, she thinks that prejudice motivates opponents of same-sex marriage. As today's Concord Monitor reports, Levesque "said many of the same cautions raised against same-sex marriage - that it violates God's will and that children raised in such a family will be endangered - had previously been raised against interracial marriage. "

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Attorney Frank R. Lindh serves as general counsel of the California Public Utilities Commission, and clerked for the solicitor general of the United States during the U.S. Supreme Court's 1984-1985 term. Writing this opinion article as a private citizen, Lindh contends that the California Supreme Court does not have "any difficult legal question" to decide with respect to the constitutionality of Prop. 8.

By approving Prop. 8 voters, exercised their right to amend the state constitution. But Lindh finds that

"[t]he standard rules for interpreting legal documents require that equal protection win out over the right to amend the Constitution by ballot initiative. This is actually easy stuff for lawyers — and usually for judges ... [The Prop. 8] case will turn on the willingness of the Supreme Court to stand up to discrimination, and say 'no' to majoritarian abuse. The justices of the Supreme Court need political courage, nothing more."

Thursday, March 26, 2009

Mary Ellen Waller provides this analysis. She is an attorney with Feinberg & Waller, a Los Angeles "law firm practicing exclusively in the area of family law, including complex divorce and family law matters."

Here is one of her observations:

"The California Supreme Court may be able to avoid the issue as to the status of the same-sex marriages that have already taken place. The Court may very well produce a ruling that Proposition 8 is unconstitutional without reaching the issue of the Proposition's effect on the same-sex marriages already legally performed."

Kate Kendell, executive director of the National Center on Lesbian Rights, told the Dallas Voice today that "she expects the court to affirm the validity of the roughly 18,000 same-sex marriages performed in California before voters approved Prop 8 in November ... because the law is clear on that issue."

"CONCORD, N.H. (AP) -- The state House on Thursday voted narrowly to make New Hampshire the third state to allow gay couples to marry.

"The bill, which passed the House 186-179, next goes to the Senate, where its future is uncertain. Democratic Gov. John Lynch opposes gay marriage but has not said specifically that he would veto it - a position that spokesman Colin Manning reiterated after the vote."

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This local television station covered a public forum in Morgantown of the West Virginia Family Policy Council. Jeremy Dys, the organization's president and general counsel, engaged public comment on the Council's proposal to amend the state's constitution to ban same-sex marriages. Although the forum appeared to have few participants, the Council is lobbying the state legislature to introduce the proposed amendment. Dys claims that state legislators have already received more than 1000 communications from citizens asking them to act.

The state has a DOMA, and, according to Dys, over 90% of West Virginians oppose same-sex marriages. Nevertheless, he told WDTV that West Virginians need opportunity to preempt the preceived risk of judicial intervention by voting for a constitutional ban. West Virginia Governor Joe Manchin opposes a constitutional amendment until a test case provides what would represent, in his opinion, the need for one.

On February 11th, several West Virginia House Delegates introduced a resolution to amend the state constitution, so that the constitution would prohibit same-sex marriages and civil unions. Similar amendments have proposed with respect to the state constitutions of Iowa, Delaware and North Carolina.

(In fact, the Delaware Senate Small Business Committee has held hearings today to consider that state's proposed amendment. One of its sponsors - Sen. Robert Venables - characterizes the amendment as allowing the state legislature to enact a civil unions law. But S.B. 27 reads: "A marriage between a man and a woman is the only legal union that shall be valid or recognized in this state." So Venable appears to misunderstand or misrepresent the larger scope of the amendment.)

Wednesday, March 25, 2009

Two college students are "circulating petitions for a ballot initiative that would strike the word 'marriage' from state laws and substitute 'domestic partnership,'" reserving to domestic partnerships all the rights and benefits previously associated with state recognition of marriage.

Like the San Francisco Chronicle, the Sacramento Bee reports initial opposition to the proposed initiative. The Chronicle reporter claims that the initiative will probably not gain enough support to qualify for the 2010 ballot.

In a Q&A session hosted by the Courage Campaign on 3/23/09, California Attorney General Jerry Brown said that Senior Assistant Attorney General Christopher Krueger "didn’t fight back as well as I would want” during oral arguments.

Brown also will "investigate any church that improperly participated in the Prop 8 campaign."

Brown "told activists he thought public opinion in California was changing fast on acceptance of same-sex marriage rights, and noted that more states may pass legislation to allow it. 'If that happens, you're getting pillars of support,' he said.

"The next step, he said, would be to try to repeal the federal Defense of Marriage Act so that marriages can gain federal support and recognition."

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(An excerpt is below. To view the full text, please use Westlaw, Lexis, a law library or alternative source.)

Everyone involved in the debate over same-sex marriage understands that the Constitution is centrally involved. We believe that under current doctrine, the Constitution affords some protection to gay marriage, but not in the manner that most would imagine. Under existing judicial interpretation, neither the Due Process Clause nor Equal Protection Clause creates a federally-protected right of individuals of the same sex to marry when prohibited by state law. It is possible that some of the federal government’s powers could be used in ways that could attempt to discourage or prevent the interstate expansion of gay marriage, but we do not think that Congress could impose an outright, nationwide prohibition without a constitutional amendment. We close with a discussion of what we feel should be a presumption in favor of individual liberty in respect to this as a matter of public policy. Even if states have the authority to regulate same-sex marriage, we submit that the case has not been made for states to enact a prohibition.

"In a special session, the Vermont Senate yesterday voted to legalize same-sex marriage. Later this week, a similar bill is scheduled for a vote in the New Hampshire House of Representatives. Next month a legislative panel in Maine will hold a hearing on a bill to allow gay couples to marry, just as lawmakers did last month in Rhode Island."

"The Vermont Senate voted overwhelmingly Monday to legalize same-sex marriage, potentially setting the stage for a high-profile legislative showdown and breaking a new political barrier in the state that made history in 2000 by becoming the first to approve civil unions for gay and lesbian couples."

Alliance Defense Fund Senior Counsel Brian W. Raum will testify before the Delaware Small Business Committee on S.B. 27, a proposed amendment to the Delaware constitution that would ban same-sex marriages and civil unions.

For similar amendments pending in other state legislatures, see my 3/19/09 post.

"With the enactment of Proposition 8, both sides may discard the decision [In re Marriage Cases, 43 Cal.4th 757] as politically spent and therefore no longer meaningful. The legacy of the case, however, lies beyond its political functions. The decision sets a bold precedent in its extension of heightened scrutiny to sexual orientation and, in so doing, highlights the need for significant changes in the understanding of immutability and suspect classifications."

The case in question is ProtectMarriage.com v. Bown, 2009 Westlaw 440211 (E.D.Cal.). "The lawsuit argues that those who contribute to traditional-marriage initiatives should be exempt from having their names disclosed, citing the widespread harassment and intimidation of donors to the Proposition 8 campaign ... The Proposition 8 lawsuit lost the first round in January when a federal judge refused to grant a preliminary injunction to stop the state from releasing the identities of those who made campaign donations after Oct. 18. "

"ProtectMarriage.com and National Organization for Marriage are asking the Court to grant their motion for summary judgment, which asks the Court to find in their favor on all of the claims in their lawsuit. If successful, California will have to remove the names of donors who gave as little as $100 to the recent campaign for Proposition 8 from the state website, among other things."

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"The [House Judiciary] committee charged with making a recommendation deadlocked 10-10 whether to support making New Hampshire the third state to allow same-sex couples to marry. Some who voted against the bill said the state isn't ready for it while others opposed gay marriage altogether."

The proposed legislation is HB 436. Like proposed legislation in other states, it guarantees First Amendment protection of religious freedom with respect to solemnizing marriages and determing religious eligibility for marriage. (I consider proposed "marriage equality" laws under the 3/14/09 entry of my post on the recent Vermont Senate Judiciary Committee hearings.)

New Hampshire Marriage Equality reports that in "case of a tie vote the bill will go to the full House for a floor fight without a committee recommendation or report."

Monday, March 23, 2009

03/20/09 Washington Post:Former Chief Justice Jefff Amestoy wrote the majority opinion in Baker v. State of Vermont, 744 A.2d 865 (Vt. 1999), the ruling that required Vermont to honor its constitutional guarantee of equal protection to same-sex couples. In this opinion article, he says that progressives should welcome a ruling by the California Supreme Court to uphold Prop. 8. Popular participation in state constitutional interpretation preserves an important outlet for progressive reform, even though

"the most pronounced demonstration of popular constitutionalism in recent years has been the adverse response of voters to judicial decisions advancing the constitutional claims of same-sex couples. The idea that judicial authority is not ultimate constitutional authority can be particularly unsettling when citizens choose to amend their state constitutions to limit rather than expand rights."

Vermont University Law Professor Peter Teachout recently praised the key role of democratic participation in Vermont's constitutional process, when he testified to the state Senate Judiciary Committee on S.115, the Vermont Act to Protect Religious Freedom and Promote Equality in Civil Marriage. Teachout said that the Baker Court acknowledged the very point that Amestoy now makes in this article - that in matters of state constitutional interpretation, "a judicial decision may be the opening argument in a process that preserves the ultimate constitutional authority of the people."

Teachout was careful to characterize this approach to state constitutional interpretation as Vermont's "special approach." Popular constitutionalism in Vermont has limitations, under Ch.2, Art. 78. Among other limitations, Vermont voters can not change their state constitution through initiative amendment, as Calfornia voters can change theirs. Is Amestoy right that popular constitutionalism has more general application?

That depends on the ease with which citizens can change their state constitution, especially with respect to fundamental rights. During oral arguments on Prop. 8, Chief Justice Ronald George pointed out that California's constitution has been changed more than 500 times, implying that, as a political question, it may be too easy to change. Consider how one version of popular constitutionalism works - or fails to work - in California:

"It is another oddity of California law that sweeping constitutional change [including the scope of equal protection and fundamental rights] can be accomplished with nothing more than a simple majority vote at the ballot. Proposition 8, for example, the constitutional amendment that banned gay marriage in the state, passed with just 52% of the vote ... A constitutional amendment -- even one that changes the most sacred ideas in the text -- can be put on the ballot by gathering signatures equal to 8% of the voters in the last gubernatorial primary. Then, if a simple majority votes for it, it's in. That's what opponents of Proposition 8 were complaining about last month to the California Supreme Court. " ("Supermajority rule: good or bad?" 03/22/09 LA Times)

University of Southern California law professor David Cruz does not think that the oral arguments support reliable prediction about how the California Supreme Court will rule on the constitutionality of Prop. 8. But the Desert Sun reporter notes that "most scholars and attorneys believe the court will upheld the validity of the 18,000 same-sex marriages conducted last year."

Mathew Staver is founder of Liberty Counsel and Dean of Liberty University School of Law. If the Court overturns Prop. 8, he told the Desert Sun that he fears "essentially the end of democracy."

Saturday, March 21, 2009

In this summary of the oral arguments, Catholic.net quotes Charles LiMandri, Thomas More Law Center’s West Coast director. He claims that even if the California Supreme Court holds upholds the validity of 18,000 same-sex marriages, that outcome will have limited "cultural" impact, in part because "same-sex relationships 'tend to last just a couple years.'"

Other attorneys interviewed for the article share the general consensus that the Court will uphold Prop. 8.

Friday, March 20, 2009

"[T]he Bridgewater couple is the lead plaintiff in a lawsuit against the U.S. government to challenge a 1996 federal law blocking same-sex spouses from receiving federal marriage benefits they say every married couple should be awarded."

UC Hastings School of Law Professor Calvin Massey told EDGE that if the California Supreme Court upholds Prop. 8, "I don’t think there is anything that could stop an amendment that would preclude same-sex couples from adopting, for example, or any other horribles. The problem here is that there isn’t federal law (protecting) same-sex marriage or (sexual) orientation."

After a week of hearings, a "unanimous Senate Judiciary Committee just voted to support S.115," the Vermont Act to Protect Religious Freedom and Promote Equality in Civil Marriage. "The full Senate is expected to debate and vote on the bill Monday [03/23/09] at 3:00 p.m."

Thursday, March 19, 2009

The proposed Vermont Act to Protect Religious Freedom and Promote Equality in Civil Marriage (S.115) has been the subject of hearings this week. It accommodates a "religious conscience" exception based on the First Amendment, as do similar proposed acts in Maryland, Rhode Island, and Maine. The object is to protect, from state intervention, those religious organizations that choose not to perform same-sex marriages.

“'As a Christian theologian, I support marriage equality because I take the Bible seriously,' said [Rev. Marvin] Ellison, an ordained Presbyterian minister who lives in Portland [and a professor at Bangor Theological Seminary]. “'Denying marriage to loving, committed adult same-sex couples is based on the sinful assumption that gay men and lesbians are not made in the image of God and do not deserve full equality under the law.'”

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"More than one hundred Pepperdine University School of Law alumni say their educations have been devalued by former White House prosecutor Kenneth Starr's simultaneous positions as dean of the university's School of Law and as lead attorney for Proposition 8, the November ballot measure voters passed banning same-sex marriage that is being challenged in court. The alumni have called for the university to issue a written statement distancing itself from Starr's affiliation with the measure."

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The proposed amendment appears to represent an effort to reverse an impending Iowa Supreme Court ruling in Varnum v. Brien, if the Court upholds the state constitutionality of same-sex marriages.

"All this takes place in the shadow of Varnum v. Brien, a lawsuit brought on behalf of six same-sex couples who are seeking the right to marry in Iowa. It is currently under consideration by the Iowa Supreme Court after oral arguments Dec. 9. The outcome will ultimately decide the constitutionality of Iowa’s Defense of Marriage Act."

The Iowa Constitution, under Art. 1, Sec. 10, identifies the procedure for placing a constitutional amendment on the ballot. Iowa voters can not place an initiative directly on their state ballot, as California voters can on theirs. A proposed constitutional amendment must first be passed by a majority of each house of the state legislature, and then passed again by a majority of each house of the legislature elected in the next election. Finally, a majority of Iowas voters must approve the proposed amendment. So if the Iowa Supreme Court rules that Iowa same-sex marriages do not violate the state constitution, it would take several years before voters would have opportunity to adopt or reject the proposed constitutional amendment on marriage.

According to this proposed amendment, an opposite-sex marriage "shall be" the only recognized or valid legal union in Iowa. The amendment could have (more clearly) addressed its retroactive scope. So the amendment appears to have just prospective application. In other words, if, as a result of the impending ruling in Varnum v. Brien, same-sex couples can marry in Iowa, they would have at least several years in which to do so before the voters could decide the outcome of constitutional amendment. And even if the voters ultimately approved the amendment, their marriages would probably remain valid or recognized in Iowa, and in other states that recognize out-of-state, same-sex marriages.

U.C. Davis law professor Vikram Amar said that "[w]hen you want a law to apply retroactively, usually you have to be explicit about it." The oral arguments included extended discussion of just this requirement.Kenneth Starr that offered the "putative spouse doctrine" a way around retroactive application; it "grew out of cases where couples weren't aware that their marriage wasn't legally certified, [and] allows the government to treat a couple as if they were married, even if they were not." University of Southern California law professor David Cruz says of the doctrine that "[w]e haven't seen this kind of targeted wiping out of a specific group's rights before," while Chapman University School of Law Dean John Eastman finds that the doctrine "treats the individual situation in an equitable fashion, but doesn't alter the law at the same time."

Wednesday, March 18, 2009

Deborah Wald is Founder of the Wald Law Group, Chair of the National Family Law Advisory Council of the National Center for Lesbian Rights, and Co-Chair of the Board of Directors of Our Family Coalition. In this opinion article, she expresses concern that, during the oral arguments, California Supreme Court justices acted as if "they didn’t say what they clearly said less than a year ago [in In re Marriage Cases, 43 Cal.4th 757 (2008)]: that fundamental equality for same-sex couples - protected by our state Equal Protection Clause - requires that committed same-sex partners be allowed the opportunity to marry."

The first day (03/16/09) of this week's hearings included testimony from two Vermont legal scholars and a Vermont attorney and chair of Vermont Freedom to Marry. All three testified before the Vermont Commission on Family Recognition and Protection, which the state legislature established to "review and evaluate Vermont's laws relating to the recognition and protection of same-sex couples and the families they form."

Vermont Freedom to Marry provides full coverage of the hearings. The 03/16/09 hearings can be viewed here, and a summary of testimony is available here. Below I summarize testimony from the Vermont law professors and attorney. I also include information on (3/14/09) about the hearings and S.115, the Vermont Act to Protect Religious Freedom and Promote Equality in Civil Marriage.

03/18/09

(1) Testimony of Vermont Law School Professor Peter Teachout

Peter Teachout is a constitutional law scholar. He testified in the 03/16/09 hearing on "Equality of Civil Unions and Marriage."

Teachout emphasized the central role of Vermont's legislature in advancing Vermont's constitutional traditions, a role that it shares as a co-equal with Vermont's state courts. While the judiciary provides basic guidance on constitutional principles, the legislature has the authority, discretion, and duty to apply that guidance through legislative remedies.

In Baker v. State of Vermont, 744 A.2d 865 (Vt. 1999), the Vermont Supreme Court decided that, under Vermont's constitution, the state legislature must take steps to ensure that same-sex couples enjoy the same common benefits and protections of Vermont law as opposite-sex couples. But the Court was careful to leave it up to the legislature to craft the appropriate remedy, whether "the form of inclusion within the marriage laws themselves or a parallel 'domestic partnership' system.'"

The Court acknowledged that the state judiciary does not have exclusive authority in deciding constitutional questions. As a "participant in democratic deliberation," the judiciary can serve as a "catalyst" for the people to implement state constitutional rights through legislative action. This collaborative approach to constitutional questions, Teachout maintains, represents Vermont's own special approach to state constitutional issues.

Because Vermont decides constitutional questions by collaborative, democratic deliberation, the state legislature has not just a right, but a responsibility to decide whether the state constitution limits the right of marriage to opposite-sex couples. The unique, intangible benefits of marriage - even more than the tangible benefits - underscore the importance of the legislature's constitutional responsibility, and so does the ("real" or "perceived") "stigma of exclusion" that Vermont's same-sex couples endure . In a matter that so vitally involves the constitutional rights and protections of Vermonters, legislators must undertake this responsibility. Otherwise, they would not satisfy their constitutional oath of office (ch. II, art. 16), together with other provisions of the state constitution. Under their constitutional oath, lawmakers may not take any legislative action "injurious to the people," or that has a "tendency to lessen or abridge their rights and privileges, as declared by the Constitution of this State." The oath raises a heightened duty of legislative care with respect to constitutional provisions that concern "unalienable rights" (ch. I, art. 1 ), a civil-rights limitation on exercise of "religious sentiments" (ch. I, art. 3), and the common benefits and protections of government (ch. I, art. 7).

"Judicial fiat" would subvert Vermont's constitutional process, a process that has had exemplary opportunity to unfold with respect to the constitutionality of same-sex marriage. ("Road to Marriage in Vermont.") By 4-3 majorities, Connecticut and Massachusetts Supreme Courts ruled that their state constitutions require recognition of same-sex marriage. Teachout considers these rulings examples of "judicial fiat" that would have shortcircuited the recent history of citizen and legislative participation in constitutional decisionmaking.

In her testimony, Robinson told Vermont lawmakers six, "real-life" stories about what gay and lesbian Vermonters experience as result of having no opportunity to marry. She used these stories - available on her blog - to underscore the following points:

1. Vermont's civil-union law supports the perception among even parents of same-sex partners that civil-union ceremonies matter less than marriages.

2. If Vermont same-sex couples could marry, the protections of marriage would travel with them to other states, such as New York, that recognize same-sex marriage. The legal protections of Vermont civil unions may not be likewise portable. And in states that do not recognize same-sex marriages, marriage case law, developed over two centuries, offers guidance on how such states may address questions involving same-sex marriage.

3. For the purpose of federal law, section 3 of the federal DOMA limits recognition of marriage to a opposite-sex couples, and thus denies to married same-sex couples the protections and benefits of federal law. A federal lawsuit has recently been filed to challenge section 3, and during his campaign President Obama said that he favors its repeal. But even if it is overturned or repealed, same-sex couples in Vermont would not benefit from that outcome unless they can marry.

4. The children of same-sex couples would have the fullest measure of legal, economic, and social protection only if same-couples could marry.

5. Many Vermont employers have health-care policies that extend health-care benefits to spouses of employees. Federal DOMA allows Vermont employers to deny these benefits to same-sex partners of Vermont civil unions. The proposed marriage-equality law (S.115), if enacted, would require them to change their policies if they wished to deny benefits to gay and lesbian spouses.

6. Just as segregation perpetuated the prejudice of racial inferiority, so the current separation between marriages and civil unions perpetuates the prejudice of gay and lesbian inferiority. The "fact of separation causes harm to everyone in the community" by signaling that "some people are more worthy of honor than others" based on their sexual orientation. [Professor Teachout, in his testimony, said that he feels "a little bit of resistance" to the analogy from segregation. Segregation was a state system of legal and economic repression, but, he claimed, civil unions do not rise to the level of a comparable system, in either purpose or effect.]03/16/09

Vermont Law School Professor Gregory Johnsontestified in the 03/16/09 hearing on "Civil Unions and Marriage in Other States."

Although he had supported Vermont's law on civil unions, Johnson considers himself a "convert" to the unfulfilled imperative of Baker v. State of Vermont, 744 A.2d 865 (Vt. 1999) - the imperative to guarantee, under Vermont's constitution, "equality before the law" with respect to "the "common benefits and protections" of government." (He helped file the litigation that led to this ruling.) He addressed three ways in which Vermont's civil unions fall short of this guarantee:

1. States will more likely recognize same-sex marriages than civil unions where such states do not have civil-union laws and do not have constitutional amendments banning same-sex marriages;

2. Vermont employers may act to extend health care benefits to same-sex partners of employees, but under federal law they may limit such benefits to spouses, as defined by the federal DOMA. If Vermont recognized marriages of all couples, including same-sex couples, employers who confer health care benefits to spouses of employees would have to act to deny such benefits to same-sex spouses under federal DOMA and ERISA. The experience in Massachusetts shows that most employers there are reluctant to take this step.

3. Several courts, and the New Jersey Civil Union Review Commission, have recognized the "intangible" benefits of marriage and the signficant harms that arise from denying same-sex couples the right to marry.

"Passing a gay marriage bill 'is one of the most important civil rights issues of our time,' said Gregory Johnson, a Vermont Law School professor who testified before the state Senate Judiciary Committee on Monday."

3/14/09

Information about the hearings, and a comparison between Vermont's proposed legislation and proposed marriage-equality legislation in other states

On March 16th, the Vermont Senate Judiciary Committee will hold hearings on:

Hearings on S.115, the Vermont Act to Protect Religious Freedom and Promote Equality in Civil Marriage, will continue throughout the week, with a public hearing on March 18th. (The House version of the proposed Act, H.178, has been referred to the state's House Judiciary Committee.).

Vermont Law School Professor Gregory Johnsonwill testify in the hearing on "Civil Unions and Marriage in Other States." He has "made numerous presentations on lesbian/gay civil rights issues" and "testified before both houses of the Vermont legislature when it considered the landmark civil unions bill."

Tuesday, March 17, 2009

David Blankenhorn and Jonathan Rauch have written books with opposing views on same-sex marriage. In a 02/23/09 NY Times article, they offer what they represent as a "reconciliation" proposal on same-sex marriage, in which Congress would allow same-sex couples - if married or in state-sanctioned civil unions - to have the status of federally-recognized civil unions, while providing religious-conscience exceptions with respect to such civil unions.

This ADF alert has links to the transcript and audio file of a 03/13/09 discussion by the authors of their proposal.

This column reports on how Chapman University Law School student Tiffany Chang has responded to the Prop. 8 litigation. Chang, who married her partner Lindsey Etheridge in July, provided a declaration in one of the amicus briefs.

Chang told the Register columnist that when she was married,

"I never could have known what that felt like, to truly be equal in our society. I don't think you know what that feels like until you've got it."

In her declaration, she expresses her concern that "people will take the passage of Proposition 8 as a societal and governmental sanction for treating people differently." She worried, in the immediate aftermath of the election, that "people might be thinking, 'see. you are wrong, you are less than me.'"

Monday, March 16, 2009

Two college students hope to qualify the California Domestic Partnership Initiative for the 2010 ballot by collecting enough voter signatures on a petition they are circulating for that purpose. The San Francisco Chronicle reports that their undertaking is "unlikely to get immediate backing from established gay rights groups, which are awaiting a decision in several legal challenges to Proposition 8 before deciding whether to ask voters to overturn the measure." Nevertheless, Alliance Defense Fund Senior Counsel Jordan Lorence tells CitizenLink.com that such groups favor the proposed Initiative:

"It's sort of like, 'If we can't redefine marriage to include same-sex couples, then we're going to wreck it for everybody,'" Lorence Said.

Law professor Katherine M. Franke is Director of Columbia Law School's Gender & Sexuality Law Program. She thinks that the proposed Initiative "is a great idea," even though she prefers legislative reform, along the lines of a similar proposal by Pepperdine University law Professors Douglas Kmiec and Shelley Rox Saxer. But she also finds that the proposed Intitiative "will surely garner opposition from marriage fundamentalists both within and outside the lgbt community."

Franke views the Initiative as an example of what she calls "disestablishing marriage." She means "disestablishment of marriage as a state-sponsored institution." Unfortunately, that characterization initially appears at odds with her purpose. Under the idea that she, Kmiec and Saxer favor, marriage would not be literally disestablished; rather, the institution would no longer remain a civil institution. As far as I can tell, she does not use "disestablished" in the sense of "withdrawal of state support from an exclusively religious institution," as Kmiec and Saxer might do if they found "marriage disestablishment" helpful. Franke appears to favor withdrawal of state support from an institution whose defining normative values the state should not recognize. That idea looks nothing like disestablishment along the lines of separation of church and state. Franke complains that In re Marriage Cases, 43 Cal. 4th 757 (2008), allegedly precludes her "state withdrawal" position by making marriage a fundamental right. But constitutions and laws generally reflect cultural norms, sometimes quite unwisely. So perhaps Franke will also offer a compelling argument for her view, or at least one more compelling than that it represents a strategic advantage over waiting a generation for federal and state constitutions to guarantee equal protection to the right to marry?

The boycott targets San Diego Manchester Grand Hyatt owner Doug Manchester, who "donated $125,000 toward the passage of Proposition 8." An official of the State Bar expressed concern that the Bar may have to cancel its annual meeting due to insufficient attendance.

"Since mid-January when the Beverly Hills bar suggested that many of its 4,000 members wouldn't attend the annual meeting unless it was moved to another hotel, several other groups have followed suit. The Lesbian and Gay Lawyers Association of Los Angeles, Bay Area Lawyers for Individual Freedom, BASF, the Los Angeles County Bar Association's delegates to the Conference of Delegates of California Bar Associations, as well as the Conference of Delegates itself, either have pulled out or threatened to boycott."

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Sunday, March 15, 2009

"Darmer thinks an argument could also be made, although not quite as easily, that gays married prior to June 16 should have their marriages recognized in California. Since the May state Supreme Court ruling found that, at that time, a ban on gay marriages was in conflict with the state constitution, gay marriages performed elsewhere prior to June 16 should be recognized here, she said."

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Saturday, March 14, 2009

Changes take effect today in Medicare, taxation, social security, and immigration - among many other legal changes - that "remove discrimination against same sex couples" in Australia. However, one key form of discrimination remains, as family law solicitor Stephen Page, of Brisbane, notes in his comment to an earlier post: "it ignored the elephant in the room - some same sex couples want to have the same freedom to marry as straight couples."

The nearest U.S. equivalent of Australia's "legal de facto relationships" appears to be in states like California, Vermont, New Hampshire, New Jersey, Oregon, and Washington, where civil unions or domestic partnerships are supposed to provide most or nearly all of the rights, benefits, and duties of marriage under state law, even though same-sex couples are still denied a right to marry. And even married same-sex couples in Connecticut, Massachusetts and California might be thought to enjoy less than a full and equal right to marry, because federal law does not recognize their marriages.

Friday, March 13, 2009

New York Law School Professor Arthur Leonard posts this update on the latest federal DOMA developments. "It is past time for the Administration to continue mouthing its good intentions to do something in the future," he says. "The issue is here and it is time for action ... only a DOMA repeal and affirmative efforts to adoptive inclusive definitions of federal statutes and regulations complying with the obligation of equal protection of the laws is needed."03/13/09 Sexual Orientation and the Law Blog:

This post links to today's New York Times article on a test of the Obama administration's will with respect to federal domestic partner benefits:

"Just seven weeks into office, President Obama is being forced to confront one of the most sensitive social and political issues of the day: whether the government must provide health insurance benefits to same-sex partners of federal employees."

This article concerns the recent challenge to the federal Defense of Marriage Act on behalf of eight Massachusetts same-sex couples and three same-sex widows.

Jennifer Pizer, senior counsel and director of Lambda Legal's national marriage project, made several comments. Gay & Lesbian Advocates & Defenders, supported by several law firms, will represent "couples who have been married for years and who have very well-documented, specific harms. That’s the very important preparatory work that’s been done." While acknowledging the "conservative" tendency of the U.S. Supreme Court, she anticipates several years of litigation before the Court will have opportunity to consider the case. In the meantime, the case will open "the next chapter of critically important national conversation." She adds that "[o]ur [LGBT] community has a lot of responsibility for continuing the education and community-building and social change work that is in the hands of movement activists but all of us."

"The federal Defense of Marriage Act preserves state sovereignty and prevents one state from rewriting the definition of marriage for every other state," Liberty Counsel founder and chair Mathew Staver said in a statement. "DOMA was passed overwhelmingly by a bipartisan Congress and signed into law by President Bill Clinton. It is an extreme position to advocate the repeal of DOMA."

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Maryland state legislators are considering legislation that "would allow civil marriages for gay couples." The proposed legislation is the Religious Freedom and Civil Marriage Protection Act. It "was amended to permit churches to refuse to perform gay wedding ceremonies" to accommodate concerns about "separation of church and state."

Wednesday, March 11, 2009

"Kmiec and the editors of the Times join a long series of activists who insist on framing the same-sex marriage debate as a clash between civil liberties and religion. But that’s not what it is. This debate is about the substantive differences between same-sex marriage and traditional marriage, whatever they are called. The question is whether the substance of the traditional institution should be endorsed both by voluntary associations (including houses of worship) and by the state as the ideal union of adults and the ideal environment for childbearing and childrearing."

Even if one concedes writer Ryan T. Anderson's point that "[m]arriage exists as a natural, pre-political, and pre-religious institution based upon human nature and its fulfillment,"Anderson fails to explain why marriage, understood this way, requires state recognition to sustain or promote it.

Tuesday, March 10, 2009

"A lot of people who voted for Prop. 8 did so because their religious beliefs tell them marriage is between a man and a woman. They aren't necessarily against same-sex couples, but they can't go against their religious beliefs," initiative-backer Ali Shams said. "With this option we're allowing them to bypass that dilemma."

03/09/09 Findlaw (part 1) and 03/10/09 Findlaw (part 2): In part 1, Douglas Kmiec summarizes the oral arguments, and faults the "claim that there is no check on what the people of California can do" by initiative. In part 2, he elaborates on a proposal by him and his Pepperdine colleague, Shelley Ross Saxer, that he thinks "would vindicate both sets of fundamental principles -- of equality and religious liberty -- that are inescapably intertwined with the same-sex marriage question." Justice Ming Chin had askedKenneth Starr whether the proposal would provide equal protection to same sex couples, and whether the Court could order it. Without endorsing it, Starr answered that it would sustain the California constitution's guarantee of equal protection, but that the Court could not order it. (For discussion in the oral arguments, see also the 03/06/09 LA Times editorial favoring the proposal.) In his 3/10/09 Findlaw article, Kmiec offers draft legislation that the California legislature could adopt if the Court upholds Prop. 8.

03/09/09 Gender & Sexuality Law Blog: Law professor Katherine M. Franke is Director of Columbia Law School's Gender & Sexuality Law Program. She says that "[t]his is the first of what I imagine to be three posts with my thoughts about the argument and its implications for the future of the gay rights movement." Her next post will concern the "nomenclature" issue - "marriage" as an official designation - that Chief Justice George and Justice Kennard repeatedly raised, signaling their intent to give constitutional amendment by initiative precedence over their holding in In re Marriage Cases, 43 Cal. 4th 757 (2008).

Monday, March 9, 2009

"Recognizing that win or lose, the LGBTQ community must have an immediate response to the forthcoming California Supreme Court decision on whether or not to uphold Proposition 8, veteran activists Robin Tyler and Andy Thayer have called for “Day of Decision” actions the night that the court releases its decision."

Alliance Defense Fund Senior Counsel Jordan Lorence participated in oral arguments in Lockyer v. City and County of San Francisco, 33 Cal. 4th 1055. In that case, the California Supreme Court ruled that San Francisco public officials unlawfully issued marriage licenses to same-sex couples, but did not address the constitutionality of same-sex marriages - a question that the Court decided in In re Marriage Cases, 43 Cal. 4th 757 (2008).

In this video clip, Lorence promises a "vigorous defense" of the federal DOMA in the recent Massachusetts Federal District Court challenge, on grounds that Californians will quickly recognize. Just as ADF could not trust former California Attorney General Bill Lockyer to adequately defend California's DOMA (Prop. 22), so ADF can not trust President Obama's Justice Department to adequately defend the federal DOMA in the Massachusetts case.

(Incidentally, although Lorence says that he is in California to attend the oral arguments, the video backdrop bears no resemblance to San Francisco!)